Eavesdropping without judicial oversight is no longer permitted

On 28th of February 2012, the Constitutional Court of Georgia upheld the complaint of Georgian Young Lawyer’s Association and repealed article 8.2 of the Georgian law on “operative investigative activity.” Only if the investigative authority has obtained judicial permission, is it allowed to conduct interception of telephone communication for a limited time determined by the court, writes Giorgi Gotsiridze, lawyer at Georgian Young Lawyer’s Association.

Pursuant to article 20.1 of Georgian Constitution, secret surveillance of privacy is allowed only if a judge orders it, or if there is a case of emergency. If a delay causes serious harm to the evidence-gathering activity, this is a case of emergency, which does not require prior judicial approval. However, the investigative authority is obliged to inform the judge about its activity within 12 hours of starting the interception, and request the court to warrant its activity. If there is no case of urgency, the investigative body is obliged to obtain a judicial order before it starts telephone interception.

Powers of secret surveillance of individuals characterizing, as they do the police state, are tolerable in a democratic state only in so far as it strictly necessary for safeguarding democratic institutions. Investigating serious crimes, the government is allowed to use such measure if interception of communication has crucial importance to uncover offense. It is the nature of secret surveillance that the measure will be enforced without the knowledge of the person who is the subject of the interception. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or initiate a procedure to determine the legality of the secret measure, it is essential to entrust the independent body with the function to control the activity of the law enforcement authority while they are carrying out the interception. The court and the procedure provided by law should guarantee adequate protection of the person whose communication is intercepted and who did not participate in the procedure, the result of which might be unnoticed intrusion into his private life.

It is obvious that the state’s agents should act with restraint. Yet the inescapable fact is that this restraint must be imposed not by the agents themselves, but by a judicial body. Law enforcement authorities were not required, before continuing the interception, to present their argument of probable cause for detached scrutiny by a neutral court. They were not compelled, during the conduct of the interception itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the surveillance had been completed, to notify the authorizing judge in detail of all that has been recorded. In the absence of such safeguards, eavesdropping is not tolerated only on the sole grounds that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Secret measure conducted without judicial warrants is unconstitutional.

The interception, consented by the court, becomes invalid at the moment when the term specified in the court order has been expired. Therefore, a state agent is prohibited from continuing to intercept the communication without another judicial order. However, the legal act repealed by the Constitutional Court allowed law enforcement authorities not to stop eavesdrop the telephone conversation, when time frame goes.

We can definitely say that the judgment made by the Constitutional court ultimately meet the human rights standards established by the European Court of Human Right and the US Supreme Court.